SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 48308/13

DATE: 2014-02-14

RE: MICHELLE ANNE HARTUNG, Applicant

AND:

JEREMY EDWARD HARTUNG, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
Diane L. McInnis, for the Applicant

Raymond Wrubel, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have therefore delivered their written submissions on costs, as directed in my Endorsement released January 9, 2014. The following is my disposition with respect to the costs associated with the return of the ex parte Order obtained by the applicant for interim interim custody of the parties’ children, a restraining order and a police assist dated October 9, 2013. The motion was argued on January 8, 2014.

[2] Following argument, I found that, although the applicant had failed to disclose material information in her affidavit in support of the ex parte motion, the order should not be overturned in its entirety as it would not be in the best interests of the children to do so. However I ordered that the respondent’s access be increased and removed the requirement that his access be exercised in the home of the children’s paternal grandmother.

Governing Principles

[3] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter.

[4] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes an offer at least one day before the motion, signed by the party and the party’s lawyer, if any, and obtains an order as favourable as or more favourable than the offer, is entitled to costs to the date that the offer was served and full recovery costs from that date, provided the offer was open for acceptance until the hearing started. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[5] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 SCJ). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[6] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan (1999) O.J. No. 3707 (CA) at para. 24).

Analysis

[7] Neither party in this case served an Offer to Settle. Neither party was entirely successful in achieving the result they sought on the motion. The applicant argued that the respondent’s access to the children be supervised and that there should be no increase in his access time and was unsuccessful on those issues. The respondent sought custody, or in the alternative, overnight weekend and midweek access and was unsuccessful on those issues.

[8] In my view, success was divided and no costs of the motion should be awarded. In any event, I would not award costs to the applicant in respect of the ex parte motion. No costs were awarded in the Order. Moreover, the finding that there had been a failure to disclose material facts in the affidavit material would militate against an award of costs.

Disposition

[9] There shall be no order as to costs in respect of the motion argued on January 8, 2014.

D. A. Broad J.

Date: February 14, 2014